ORAL ARGUMENT REQUESTED

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STATEMENT OF PRIOR OR RELATED CASES .............................................. xvISSUES PRESENTED ............................................................................................. 1INTRODUCTION .................................................................................................... 2STATEMENT OF THE CASE ................................................................................ 2SUMMARY OF THE ARGUMENT ....................................................................... 6STANDARD OF REVIEW ...................................................................................... 8ARGUMENT ............................................................................................................ 8I. THE STATE ADVANCES A NEW STATUTORY INTERPRETATION INCONFLICT WITH PRIOR REPRESENTATIONS TO THE LOWER COURTAND THE EXPRESS LANGUAGE OF THE STATUTE. ..................................... 8II. THE GOVERNMENT ERRONEOUSLY RELIES ON REYNOLDS ANDSTATE JUDGMENTS AS THE BASIS OF HIS APPEAL. ................................. 12A. Reynolds v. United States Does Not Control in Light of Subsequent RulingsBy the Supreme Court. ........................................................................................... 13B. The State Decisions Cited By Appellant Address Federal Rights and TestsThat Are Not Binding Precedent. ........................................................................... 18III. THE DISTRICT COURT CORRECTLY FOUND THAT UTAHSCRIMINALIZATION OF COHABITATION VIOLATED THE DUE PROCESSCLAUSE OF FOURTEENTH AMENDMENT. ................................................... 23

ii

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A. The Cohabitation Provision Should Be Struck Down Under A Strict or

Heightened Scrutiny Test. ...................................................................................... 23B. Even Without Applying Strict or Heightened Scrutiny, the CohabitationProvision Would Be Unconstitutional Under A Rational Basis Test. .................... 30C. The District Court Correctly Found That The Cohabitation Clause Was VoidFor Vagueness. ....................................................................................................... 37IV. THE DISTRICT COURT CORRECTLY FOUND THAT UTAHSCRIMINALIZATION OF COHABITATION VIOLATED THE FREEEXERCISE CLAUSE OF THE FIRST AMENDMENT. ...................................... 44A. The District Court Correctly Applied The Strict Scrutiny Test In Finding AViolation of the Free Exercise Clause. ................................................................... 44B. Even Without Applying A Strict Scrutiny Test, The Cohabitation ProvisionWould Fail A Rational Basis Test. ......................................................................... 58V. THE DISTRICT COURT CORRECTLY FOUND THAT THE STATUTEWAS UNCONSTITUTIONAL UNDER A HYBRID CLAIM ANALYSIS. ....... 59VI. THE DISTRICT COURT CORRECTLY FOUND THAT APPELLEESWERE ENTITLED TO FEES UNDER SECTIONS 1983 AND 1988. ................ 62A. Appellant Waived Any Defenses To Damages. .............................................. 65B. The District Court Did Not Err In Finding That The Complaint ProperlyPleaded a Claim for Money Damages. ................................................................... 67VII. THE AMICUS FILINGS IN FAVOR OF THE STATE ADVANCEUNSUPPORTED LEGAL AND FACTUAL CLAIMS. ....................................... 72VIII. CONCLUSION ............................................................................................. 75CERTIFICATE OF COMPLIANCE WITH RULE 32(a)................................... 77

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STATEMENT OF PRIOR OR RELATED CASES

There are no known prior or related appeals to this matter.

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ISSUES PRESENTED1. Whether The Free Exercise Clause of the First Amendment RendersUtahs Cohabitation Law Unconstitutional.2. Whether the Due Process Clause under the Fourteenth AmendmentRenders Utahs Cohabitation Law Unconstitutional.3. Whether the District Court Erred by Finding That Plaintiffs Were Entitledto Recovery of Fees Under 1983.

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INTRODUCTIONThis matter comes before the Court after the United States District Court forthe District of Utah ruled that the criminalization of cohabitation under Utah CodeAnn. 76-7-101 (hereinafter the Utah cohabitation provision) wasunconstitutional. In the first summary judgment opinion, the lower court foundthat the Utah cohabitation provision violated both the Free Exercise Clause of theFirst Amendment to the United States Constitution and the Due Process Clause ofthe Fourteenth Amendment. See Brown v. Buhman, 947 F. Supp. 2d 1170, 120421, 1222-26 (D. Utah 2013). (J.A. at 560-650).1 In the second summary judgmentopinion, the lower court ruled that the defendant also violated 42 U.S.C. 1983.See Brown v. Herbert, 43 F. Supp. 3d 1229, 1232 (D. Utah 2014) (J.A. at 726-730).As discussed below, the government does not present arguments on eitherthe hybrid constitutional or void for vagueness rulings and those issues should bedeemed as waived for purposes of appeal. Finally, the government also waived alldefenses to the 1983 claim before the lower court.

STATEMENT OF THE CASE

The lower court presented the facts of this case, but the Appellees wish to1

Citations to the Joint Appendix will denoted as J.A. at xx. Citations to

Appellants second errata brief will be denoted as App. Br. at xx.2

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note a few salient facts missing from Appellants brief. Plaintiffs filed theirMotion for Summary Judgment, presenting detailed arguments on sevenconstitutional claims including due process, equal protection, free speech, freeassociation, free exercise, the Establishment Clause, and 42 U.S.C. 1983. (Dkt.No. 49.) During the argument over summary judgment, the court noted that itwas intrigued by the sheer lack of response in Defendant's filing to Plaintiffsseven detailed constitutional claims.2 Buhman, 947 F. Supp. 2d at 1176-77.Indeed, the Court expressed sympathy for the Plaintiffs who objected that theywere in the awkward position of replying to a non-response. Id. at 1177. It wasonly in Appellants Reply that he for the first time, provided academic discussionabout social harms arising from religious cohabitation in Utah, though noadmissible evidence was proffered with his Cross-Motion, Response, or Reply, orin oral argument on the motions held on January 17, 2013. Id.As a result, the factual record in this appeal is largely uncontested, as notedby the lower court. See Buhman, 947 F. Supp. 2d at 1177-78. The Brownspresented at summary judgment thirty-two critical facts that were accepted orwaived without objection by the Appellants. Indeed, in oral argument, Appellant2

For example, the Court noted that Defendants memorandum supporting hisCross-Motion and Response contained merely seven pages of total Argument bothin support of his own Cross-Motion for Summary Judgment and in response toPlaintiffs' 50 pages of detailed Argument in support of their Motion for SummaryJudgment on seven substantive constitutional claims. Buhman, 947 F. Supp. 2d at1177 n.1.3

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again affirmed that [w]e referenced a couple of facts that we took some issuewith, but the overall thrust of it theres no dispute. (J.A. at 826). The lower courtthen distilled those facts down to twenty:1.

The Statute covers not only polygamy but cohabitationa

term that encompasses a broad category of private relations inwhich a married person purports to marry another person orcohabits with another person.

2.

The practice of married individuals cohabiting with other

people can include adulterous relations.

3.

The Browns are members of a religious group that believes

polygamy is a core religious practice.

4.

The Brown family does not have multiple marriage licenses.

5.

There is only one recorded marriage license in the Brown

familythat of Kody and Meri Brown.

6.

Prosecutions under the Statute have been rare and published

cases in the last three decades only involve religiouspolygynists.

7.

Utah government officials are aware of thousands of

polygamist families in the state and regularly interact with suchfamilies as part of the Safety Net program and othergovernmental programs.

8.

The Sister Wives is a reality show that explores the daily

issues and realities of a plural family.

9.

The content of The Sister Wives program includes the

defense of plural families and discussion of the Brownsreligious beliefs in polygamy.

10.

Utah government officials were aware that the Brown family

was a plural or polygamist family for years before the firstepisode of The Sister Wives aired on TLC Network.

11.

The investigation of the Browns occurred only [after] the first

episode of The Sister Wives aired.4

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12.

State officials have acknowledged that The Sister Wives

program triggered their investigation.

13.

State officials publicly denounced the Browns as committing

crimes every night on television.

14.

One official connected to the investigation publicly stated the

program made prosecution easier.

15.

The prosecutors stated that the Brown family moving to Nevada

would not prevent them from prosecuting the family.

16.

The Defendant admitted, through counsel in the December 16,

2011 hearing, that prosecutors gave interviews discussing theBrown family, their alleged crime of polygamy, and the publicinvestigation;

17.

The Defendant has found no evidence of any crime by the

Browns though he maintains future prosecutors can chargethem as a matter of discretion and policy. . . .

18.

The Defendant has said that there is no guarantee that the

Browns will not be prosecuted in the future for polygamy.

19.

There has been no allegation of child or spousal abuse by

members of the Brown family.

20.

No member of the Brown family has ever been charged with a

crime

Buhman, 947 F. Supp. 2d. at 1178-79. In addition, the District Court rejected theonly two objections made by the government. First, the government objected tothe factual background of the Utah law to the extent that they characterize thedrafters (or enforcers) of the Anti-Bigamy Law as targeting primarily religiousplural families. Buhman, 947 F. Supp. 2d at 1177. The District Court noted thatthe express targeting or reference to religious plural families is replete in the

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historical record and uncontestable.3 See id. at 1777 n.2.

The government was repeatedly asked by the lower court if it wanted tosubmit additional evidence before the record was closed, particularly on thequestion of harm. See id. at 1177, 1191, 1216; J.A. at 839 (Tr. Hrg. Jan. 17, 2013,at 17: 14-25) (noting that the State chose not to present any evidence to supportany harm to which the State responded that it had pointed out stories of harm).The State, however, repeatedly declined to offer such evidence.

SUMMARY OF THE ARGUMENT

This case is about the criminalization, not recognition, of pluralrelationships. From the very outset of the case, the Brown family maintained thatit was not challenging the right of any state to criminalize bigamy or the possessionof multiple state marriage licenses by individuals. The Browns also consistentlyasserted that they were not arguing for the state recognition of plural marriage.The Browns only challenged the cohabitation language, and it is only that languagethat was struck by the lower court, making the current Utah law virtually identicalto the bigamy laws of other states.

In his other objection, Appellant insisted that he never threatened criminal

prosecution personally. The District Court explained that Buhman is responsiblefor such actions by his office. Buhman, 947 F. Supp. 2d at 1179. Buhmanconceded I am aware that others in my office may have responded to the press tothat effect (or at least the press reported that they did). Id.6

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While accepting the record below, the government again raises unspecifiedand emotive claims of harm against polygamy. Not only do these claims notaddress the full range of cohabitation under the statute, they invite the Court todispense with requirements of proof in favor of a biased presumption of harmagainst an insular, minority group.4 The government would have this Court ignorethe trial court record and assume harm in a way that is not applied to monogamousunions. It would also have this Court ignore that fact that the statute extends to anyand all plural relationships involving a person who is married, including adulterousrelationships.The very notion of a state today criminalizing the right of consenting adultsto maintain certain private relationships is a regression to a prior century of stateenforced morality codes. Not surprisingly, the government relies on cases likeReynolds v. United States, 98 U.S. 145 (1878), which has been widely condemnedfor its openly prejudiced and ill-tempered rhetoric against social, racial, andreligious minorities. Modern cases have consistently rejected the criminalizationof private relationships, see Lawrence v. Texas, 539 U.S. 558 (2003), as well as4

The claims of harm associated with cohabitation or polygamy as the basis

for criminalization has been contested as unsupported. See generally Ronald C.Den Otter, Three May Not Be A Crowd: The Case For A Constitutional Right toPlural Marriage, 64 Emory L.J. 1977 (2015); Jonathan Turley, The LoadstoneRock: The Role of Harm In The Criminalization of Plural Unions, 64 Emory L.J.1905 (2015) (hereinafter The Loadstone Rock); see also Stu Marvel, TheEvolution of Plural Parentage: Applying Vulnerability Theory To Polygamy andSame-Sex Marriage, 64 Emory L.J. 2047 (2015).7

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rejected barriers based on moral and social bias, see United States v. Windsor, 133S. Ct. 2675 (2013) and Obergefell v. Hodges, 135 S. Ct. 2584 (2015). By onlystriking the cohabitation provision, the District Court left Utah with the same lawmaintained by most states in the Union prohibiting bigamy. What was lost to thestate is precisely what is denied to all states: the right to impose criminal moralitycodes on citizens, compelling them to live their lives in accordance with thereligious or social values of the majority of citizens.

STANDARD OF REVIEWThe Court reviews de novo a grant of summary judgment, ChristianHeritage Acad. v. Okla. Secondary Sch. Assn, 483 F.3d 1025, 1030 (10th Cir.2007), in determining that there are no genuine disputes of materialfact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.56(a).

ARGUMENTI.

THE STATE ADVANCES A NEW STATUTORY

INTERPRETATION IN CONFLICT WITH PRIORREPRESENTATIONS TO THE LOWER COURT AND THEEXPRESS LANGUAGE OF THE STATUTE.Appellant seeks to introduce a new argument on appeal that the statute

means something completely different from what it expressly states and what the

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government expressly told the Browns, the public, and, most importantly, thelower court. In addition to accepting the record created below with just two minorobjections, the government did not contest the obvious reading of the state law ascriminalizing cohabitation. Now, the government insists that the only responsiblething for a court to do is to actually change the language of the statute andsubstitute an and for a critical or in the provision. This requested judicialamendment of the state law would violate core principles of the separation ofpowers by allowing courts to rewrite or improve laws. It is not the province offederal courts to rewrite a state law to conform it to constitutional requirements.Virginia v. Am. Booksellers Assn, 484 U.S. 383, 397 (1988). It would alsoproduce absurd results.Judge Waddoups minimized the impact of his decision by excising theunconstitutional language and, through constitutional avoidance principles,adopting a reasonable construction . . . in order to save [the] statute fromunconstitutionality." Gonzales v. Carhart, 550 U.S. 124, 153 (2007) (quotingEdward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council,485 U.S. 568, 575 (1988)). Ironically, the State in its brief advocates a far moreintrusive role for the courtsa role that could lead to the entire statute being struckdown or a narrowing of the law to bar the prosecution of many conventionalbigamy crimes.

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The language of the statute is clear on its face: A person is guilty of

bigamy when, knowing he has a husband or wife or knowing the other person has ahusband or wife, the person purports to marry another person or cohabits withanother person. Utah Code Ann. 76-7-101(1) (emphasis added). This languageis materially different from other bigamy laws in other states due to the inclusionof the cohabitation clause.5The government repeatedly was asked by the lower court about the meaningof the statute and did not object to the following finding:The Statute covers not only polygamy but cohabitationa term thatencompasses a broad category of private relations in which a married personpurports to marry another person or cohabits with another person.Buhman, 947 F. Supp. 2d at 1178. In addition, the State conceded that thecohabitation clause was indeed added as a separate provision to allow for a broaderscope of prosecutions:MR. JENSEN: . . . [I]ts not marriage but they know the other person ismarried. So theyre cohabiting. That is different than just cohabitation.Two people can go out and cohabit, and lets admit, it goes on all the time.But in this situation under the statute theyre not prosecuted unless the onecohabiting knows that person is married. Its the same as with marriage.THE COURT: So it applies to an adulterous relationship? By definition,5

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adultery is a person who is married and has intimate relationships with

another person to whom he is not married. Thats what youve justdescribed.MR. JENSEN: All right, Your Honor. But lets look at how this reallyworks in practice. In practice there is the marriage, it may not berecognized by the state, but it is a marriage, its performed, there is awedding ceremony performed, there are vows exchanged. The problem isproving it . . . . The problem was proving that they were married, so theyhave added cohabitate, but the person has to cohabitate knowing that otherperson is married . . . .THE COURT: So tell me whats different between adultery and whatyouve just described.MR. JENSEN: The one is that they claim to be married. But just becausethe state cant prove it doesnt mean it hasnt happened. Thats whatshappening in the [religious] polygamist communities.THE COURT: So its the expression of the fact that the person is a wife thatmakes it illegal.MR. JENSEN: Yes.Id. at 51:17-53:22 (emphasis added). Thus, the State wanted to guarantee that itcould prosecute both bigamy and cohabitationhence the use of the word or inthe statute.Finally, the States new argument would produce a particularly bizarre result.If the State succeeded in convincing this Court to substitute or with and, itwould mean that bigamy could not be prosecuted in the state of Utah absentcohabitation. Thus, a person could hold two, six, or ten marriage licenses with thestate but not commit a crime under the statute unless they cohabitated. Rather than

11

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expand the scope of prosecutable cases, it would reduce the scope below virtuallyany other state. Moreover, if the two clauses were inextricably linked, theunconstitutionality of the cohabitation language would result in the entire lawbeing struck down on the same grounds of due process and free exercise discussedin the lower courts opinion and below.

II.

THE GOVERNMENT ERRONEOUSLY RELIES ON REYNOLDS

AND STATE JUDGMENTS AS THE BASIS OF HIS APPEAL.The government leads its brief with a long discussion of pre-Lawrence

precedent and state judgments as binding [or] pursuasive [sic] authority. App.Br. at 18. The reliance on the decision in Reynolds v. United States, 98 U.S. 145(1878) is especially misplaced as well as the equal reliance on the pre-Lawrencedecision of Potter v. City of Murray, 760 F.2d 1065 (10th Cir. 1985). Appellantsanalysis proves to be something of a legal period piece that seeks to apply aSupreme Court precedent from the 19th century and treats constitutional analysis aseffectively frozen in analytical amber after the now-over-turned decision in Bowersv. Hardwick, 478 U.S. 186 (1986).Of course, whatever the ruling of this Court on the protection of intimate orreligious interests in this case, the basis of such a decision is entirely a matter offederal interpretation. Standard Oil Co. of Cal. v. Johnson, 316 U.S. 481, 483(1942) (Since this determination of a federal question was by a state court, we are12

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not bound by it.); see also United States v. Madden, 682 F.3d 920, 927 (10th Cir.2012); Indus. Consultants, Inc. v. H. S. Equities, Inc., 646 F.2d 746, 749 (2d Cir.1981)). Not only did the cited state cases predate important federal rulings citedbelow, but the interpretation of constitutional rights or their underlying tests bystate courts are not controlling precedent for federal courts.

A.

Reynolds v. United States Does Not Control in Light of Subsequent

Rulings By the Supreme Court.

The government commits a sizable amount of its brief to arguing that thedecision of Reynolds should be controlling precedent despite a litany of subsequentcases by the Supreme Court rejecting its analysis. This includes cases just this yearlike Obergefell that clearly do not subscribe to the long-abandoned analysis andoffensive language of Reynolds. To put it simply, Reynolds is a legal relic that iswidely condemned by academics and rarely cited by the Supreme Court6 as a basis6

The questionable foundation for Reynolds is also reflected in the Supreme

Courts opinions. See, e.g., D.C. v. Heller, 554 U.S. 570, 635 (2008) (But sincethis case represents this Court's first in-depth examination of the SecondAmendment, one should not expect it to clarify the entire field, any more thanReynolds, our first in-depth Free Exercise Clause case, left that area in a state ofutter certainty.) (citation omitted); Church of the Lukumi Babalu Aye, Inc. v. Cityof Hialeah, 508 U.S. 520, 574 (1993) (the Court has not explored the history ofthe Clause since its early attempts in 1879 and 1890, see Reynolds v. UnitedStates and Davis v. Beason, attempts that recent scholarship makes clear wereincomplete.) (citations omitted); Wisconsin v. Yoder, 406 U.S. 205, 247 (1972)(Douglas, J., dissenting) (noting that the majoritys departure from Reynoldspromises that in time Reynolds will be overruled.)13

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for substantive constitutional analysis. See Kenneth W. Starr, Liberty and EqualityUnder the Religion Clauses of the First Amendment, 1993 BYU L. Rev. 1, 2(1993) (criticizing Reynolds); Peter Nash Swisher, I Now Pronounce YouHusband and Wives: The Case for Polygamous Marriage After United States v.Windsor and Burwell v. Hobby Lobby Stores, 29 BYU J. Pub. L. 299, 325 (2015)([T]he archaic and moralistic Victorian rationale of Reynolds is no longersupportable); Casey E. Faucon, Polygamy After Windsor: Whats Religion Got toDo with It?, 9 Harv. L. & Pol'y Rev. 471, 496 (2015) (The law and scholarship onmarriage policy in America has expanded from the archaic policies that informedthe Reynolds decision . . . .); Keith E. Sealing, Polygamists Out of the Closet:Statutory and State Constitutional Prohibitions Against Polygamy AreUnconstitutional Under the Free Exercise Clause, 17 Ga. St. U. L. Rev. 691, 710(2001) (Reynolds v. United States demonstrates the degree to which even theSupreme Court was in the grip of anti-Mormon hysteria and was willing to ignoreconstitutional concepts of fundamental fairness in trials against Mormons.).Indeed, it is ironic to see Utah relying heavily on such a decision that is repletewith offensive and prejudiced statements directed at religious and racial minorities,particularly Mormons.The original purpose of the criminalization of plural relationships was theview that such relationships were immoral. See Reynolds, 98 U.S. at 166

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(upholding states right to dictate conditions of social life under its dominion.).This same analysis led the Court (with most of the same justices), just four yearslater in Pace v. Alabama, 106 U.S. 583 (1883), to uphold Alabamas antimiscegenation statute. That decision was later overturned in Loving v. Virginia,388 U.S. 1 (1967). The Supreme Court ultimately rejected this type of moralitybased analysis in Lawrence v. Texas, 539 U.S. 558 (2003), overturning Bowers v.Hardwick, which held that morality alone could be the basis for the criminalizationof private consensual homosexual relations. The Court clearly established inLawrence that the mere objection to the morality of private relations was not acompelling state interest. If it were, a majority in a state could still prohibitinterracial marriage. Even the Defendant acknowledged that Reynolds precededthe Courts recognition of such rights and that good order and morals in societyis no longer considered a valid basis for laws.7 (J.A. at 413).Any person reading Reynolds would recoil from its venomous and biasedlanguage. See Reynolds, 98 U.S. at 164 ([p]olygamy has always been odiousamong the northern and western nations of Europe, and, until the establishment ofthe Mormon Church, was almost exclusively a feature of the life of Asiatic and ofAfrican people.). A little over a decade later, the Court expressly vented its

Moreover, as the District Court noted, even if Reynolds were still found tobe a viable precedent, it is not controlling for the cohabitation prong under the1973 statute. Buhman, 947 F. Supp. 2d at 1204.15

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prejudice against Mormons and the inculcation and spread of the doctrines andusages of the Mormon Church, or Church of Latter- Day Saints. Late Corp. of theChurch of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 48-49(1890) (denouncing practices contrary to the spirit of Christianity, and of thecivilization which Christianity has produced in the western world.). Even settingaside such sectarian and racial animus, the Court insisted that the government hadthe power to abrogate the most basic rights of marriage and social life, seeReynolds, 98 U.S. at 166, a position that is clearly no longer good law. Obviously,the Court has repeatedly held that states do not dictate social life under itsdominion and, as recently as this year, the Court reaffirmed that intimate affairsare protected from such state dominion. See Obergefell, 135 S. Ct. at 2599 (Likechoices concerning contraception, family relationships, procreation, andchildrearing, all of which are protected by the Constitution, decisions concerningmarriage are among the most intimate that an individual can make.).Additionally, Reynolds has been cited directly by the Supreme Court in referenceto the criminalization of bigamy: the very part of the state law that was preservedby Judge Waddoups. See, e.g., Paris Adult Theater I v. Slaton, 413 U.S. 49, 68n.15 (1973). This is in line with the facts of Reynolds, which concerned actualplural marriagenot the mere practice of cohabitation at issue in this case.8

Indeed, the first cohabitation law was written after reversals based on the16

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The government also places great emphasis on the decision in Potter v. Cityof Murray, 760 F.2d 1065 (10th Cir. 1985). However, Potter was decided roughlytwo decades before Lawrence (and roughly one decade before Church of theLukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)) and involved thehighly distinguishable context of a polygamous police officer accused of violatingthe laws that he was sworn to uphold. In a single paragraph, this Court citedReynolds and ruled against any privacy claim. See Potter, 760 F.2d at 1070-71. Atthat time, the criminalization of homosexual relations was still consideredconstitutional in this country under Bowers v. Hardwick, 478 U.S. 186 (1986) andthe decision came before the landmark decision in Empt Div., Dept of Human Res.of Oregon. v. Smith, 494 U.S. 872 (1990). Indeed, in Potter, this Court noted theshared constitutional basis for the criminalization of bigamy and homosexuality.Potter, 760 F.2d at 1069 (quoting Zablocki v. Redhail, 434 U.S. 374, 399 (1978)(Powell, J., concurring in the judgment)).Recently, the Supreme Court offered a stark contrast to the analysis found inReynolds and articulated the basis for protecting liberty interests of social andreligious minorities. The Court explained that the line between due process andabsence of official proof of a successive marriage in cases like Miles v. UnitedStates, 103 U.S. 304, 314-15 (1881) (reversing conviction for bigamy). In a caseciting its recent Reynolds decision, the Court noted that state law required proof oftraditional bigamy of person having a husband or wife living, who marriesanother. Id. at 305, 310; see also Swisher, supra, 29 BYU J. Pub. L. at 305.17

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equal protection sometimes merge in the protection of such liberty interests andthat [t]he Due Process Clause and the Equal Protection Clause are connected in aprofound way . . . the two Clauses may converge in the identification anddefinition of the right. Obergefell, 135 S. Ct. at 2602-03. From the rejection ofmorality legislation in Lawrence to the expansion of the protections of libertyinterests in Obergefell, it is clear that states can no longer use criminal codes tocoerce or punish those who choose to live in consensual but unpopular unions.This case is about criminalization of consensual relations and there are 21st centurycases rather than 19th century cases that control.

B.

The State Decisions Cited By Appellant Address Federal Rights

and Tests That Are Not Binding Precedent.

The Appellant argues that this Court should follow a couple rulings of theUtah State Supreme Court on the interpretation of federal rights and theirunderlying tests. As noted earlier, federal courts are not bound by such rulings,and the rulings in State v. Green, 99 P.3d 820, 828 (Utah 2004) and State v. Holm,137 P.3d 726 (Utah 2006) are particularly problematic as precedent of any kind fora federal court.Green involved a bigamist who fathered twenty-five children by at least sixwomen and held multiple marriage licenses. Green, 99 P.3d at 822. In addressinga free exercise challenge, the Utah Supreme Court applied Reynolds even though it18

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admitted that its reasoning may not necessarily comport with todaysunderstanding of the language and apparent purpose of the Free Exercise Clause.Id. at 825. The court wrongly assumed that the mere fact that Reynolds is cited forany proposition, it must be binding precedent for its original use in upholding suchcriminal laws in all cases. The government insists that this Court is somehowbound by that fact that [t]he Green court found the Statute was neuetral [sic] andgenerally applicable. App. Br. at 25. However, federal courts are free to makethese legal judgments for themselves in determining if a state law violates federalconstitutional law. The mere fact that the words used in the statute are notreligious was deemed sufficient to find a neutral and generally applicable law.As discussed below, this is an incorrect reading of the precedent and, moreover,the law would not satisfy even the lowest standards of review. The Green courtrefused to consider the legislative history behind the provision that shows an intentto target religious cohabitation. Green, 99 P.3d at 828. The court also declined toconsider privacy, free speech, and other constitutional claims (including hybridclaims) due to technical deficiencies found in the appellate brief of the defendant.Id. at 829. The court was also mistaken in its understanding of other states withcohabitation laws, citing three states that also criminalize cohabitation. Howeverthe comparison to those states is entirely superficial.9 Finally, the court referred to

For example, in Colorado, the state has long recognized that there must be19

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the case (involving multiple licenses) as threatening the institution of marriage andcreating a legitimate concern of government benefit fraud. Id. at 830. Thoseissues are not present in the instant case.The decision in State v. Holm, 137 P.3d 726 (Utah 2006), is even moreproblematic. As a starting point, Rodney Hans Holm was convicted of not justbigamy but unlawful sexual conduct with a minor. In stark contrast to thedispassionate analysis of Judge Waddoups, Utah Justice Ronald Nehring wrote anopinion that was as shocking as Reynolds in its open acknowledgement of personalanimus and bias against polygamists. State v. Holm, 137 P.3d 726, 753 (Utah2006) (Nehring, J., concurring) (No matter how widely known the naturalwonders of Utah may become, no matter the extent that our citizens earn acclaimfor their achievements, in the public mind Utah will forever be shackled to thepractice of polygamy.). Nehring was remarkably frank in admitting that thishostility has been present in [his] consciousness, and [he] suspect[s] has been abrooding presence .!.!. in the minds of [his] colleagues, from the moment [they]

proof of an actual marriage to violate the criminal law. See Stark v. Johnson, 43Colo. 243, 245 (1908). Likewise, the Appellees could not find any case ofcohabitation being treated itself as a crime in Texas under its bigamy statute. Inthe third state, Rhode Island, the courts have expressly said the opposite of whatthe Utah Supreme Court claimed and long rejected the view of the Utah SupremeCourt in the prosecution of cohabitation. Indeed, shortly after the Reynolds case,the Supreme Court of Rhode Island quashed an indictment based on cohabitationin In re Watson, 19 R.I. 342 (1896) (requiring a second marriage in order to securea conviction under the statute).20

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opened the parties briefs. Id. Rather than overcome that prejudice, Nehringwarned all Utah judges that I have not been alone in speculating what theconsequences might be were the highest court in the State of Utah the first in thenation to proclaim that polygamy enjoys constitutional protection. Id.Holm stands in sharp contrast to the analysis found in Lawrence, which theUtah Supreme Court itself admits is sweeping. Id. at 734. Yet, under theopinion, the state retains the right to declare private relationships to be undeclaredmarriages and thus criminal acts. The case preceded the rulings in Windsor andObergefell and the rejection (in the later case) of the right of states to limitmarriages to fit a narrow definition of marriage. In the main opinion, the court wasstill enforcing what it viewed as an unchallengeable right of states to limit marriageas well as intimate relationships to further social order and mores. Id. at 743. Thepre-Obergefell analysis is clear in the courts insistence that [t]he State must beable to assert some level of control over those relationships to ensure the smoothoperation of laws and further the proliferation of social unions our society deemsbeneficial while discouraging those deemed harmful. Id. at 744. The same logicwas used to declare same-sex marriages to be inimical to public order and theinstitution of marriage.The Holm court adopted a sweeping view of plural families as attempt[ing]to extralegally redefine the acceptable parameters of a fundamental social

21

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institution like marriage. Id. Yet, given that plural religious marriage is itself apurely private living arrangement, centered around the home, the state interest is ofprecisely the sort that Lawrence invalidates: it criminalizes consensual intimaterelationships on the theory that their public acknowledgment alone undermines astate institution. On such a theory, the legislature could proscribe sodomy becausehomosexuals public statements about their sexual or romantic relationshipssomehow undermine heterosexual norms.10 Other than stating the legislaturedeemed harmful plural marriage, the Holm Court provides not one explanationas to why the protection of a monogamous legal marriage requires thecriminalization of a broad swath of private relationships. It necessarily followsfrom Lawrence that heterosexual conduct is also protected when it occurs in thecontext of an intimate relationship in the homeparticularly when coupled withfamilial organization and religious values. Lawrence, 539 U.S. at 574-75; see alsoChristensen v. Cty. of Boone, 483 F.3d 454, 463 (7th Cir. 2007); Anderson v. Cityof LaVergne, 371 F.3d 879, 882 (6th Cir. 2004).Notably, the one aspect of Holm that may be controlling is the scope of thebigamy statute as found by the state court, the very issue that the government tries

10

Justice Scalia made precisely this point in Lawrence: preserving the

traditional institution of marriage is just a kinder way of describing the Statesmoral disapproval of same-sex couples. Lawrence, 539 U.S. at 601 (Scalia, J.,dissenting).22

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to evade in its brief by attempting to distinguish some cases of adultery. The UtahSupreme Court stressed that the statute does not require a party to enter into asecond marriage (however defined) to run afoul of the statute; cohabitation alonewould constitute bigamy pursuant to the statutes terms. Holm, 137 P.3d at 735;see also R.A.V. v. City of St. Paul, 505 U.S. 377, 381 (1982) ([W]e are bound bythe construction given to [the statute] by the [state] court.).

III.

THE DISTRICT COURT CORRECTLY FOUND THAT UTAHS

CRIMINALIZATION OF COHABITATION VIOLATED THE DUEPROCESS CLAUSE OF FOURTEENTH AMENDMENT.There are two protected interests denied by the cohabitation provision:

cohabitation and religious cohabitation.11 Both interests or rights should be

afforded protection under principles of due process, and the State failed to establisha record of any harm that would support even the lowest standard of review in thiscase. It cannot now satisfy that burden by referring to generalized statements fromearlier decisions or a judicial presumption of harm from consensual relationships.

A.

The Cohabitation Provision Should Be Struck Down Under A

Strict or Heightened Scrutiny Test.

A substantive due process claim has two primacy features: (1) an asserted11

The District Court added a third interest in polygamy. Buhman, 947 F.

Supp. 2d at 1194. However, for the purpose of constitutional analysis, polygamycan be subsumed under the broader class of religious cohabitation.23

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fundamental right or fundamental liberty that is deeply rooted in this Nations

history and tradition and implicit in the concept of ordered liberty, such that neitherliberty nor justice would exist if they were sacrificed and (2) a carefuldescription of the asserted fundamental liberty interest. Washington v.Glucksberg, 521 U.S. 702, 719 (1997); Seegmiller v. Laverkin City, 528 F.3d 762,769 (10th Cir. 2008).Cohabitation. The Browns presented a detailed description of the right toprivacy and intimate relations that have been recognized and protected by theSupreme Court as central to our concepts of fundamental rights and liberty. SeeObergefell, 135 S. Ct. at 2599. While the lower court found that the right tocohabitate was denied protection under this Courts ruling in Seegmiller, theBrowns disagree that the case establishes a sweeping denial of protection over themost intimate relationships in our society. If it does, they respectfully submit thatthe decision should be reexamined in light of the instant case and recent controllingprecedent.While the District Court found that the Brown family had made therequired careful description of a fundamental right and advanced a verypersuasive case for heightened scrutiny, it ultimately decided that thelanguage in Seegmiller militated against the application of the higherstandard. Buhman, 947 F. Supp. 2d at 1201. It did so despite its agreement

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with the Browns that Seegmiller was factually distinguishable given theinvolvement of a police officer who was disciplined for violating a law thathe was sworn to uphold. Id. at 1202. In the end, the outcome wasunchanged since the law could not satisfy the lower standard. However, at aminimum, this Court should limit the Seegmiller case to claims of protectedsexual acts as opposed to private consensual relationships between adultschoosing the structure of their family and personal lives. It is not polygamyas such that is protected as a fundamental right but the choice of havingsingle or multiple partners in a private consensual relationship. Otherwise,decades of rulings protecting private consensual relationse.g., Lawrenceand other casesmake little sense if they are viewed only through ahistorical lens. Homosexuality was a crime for centuries in this and othercountries. Adultery and fornication were long considered crimes.12 It wasthe recognition of choice generally, not the specific form of sexualrelationships, that is the foundation for these decisions.While the Court in Lawrence was ambiguous at points, it was clearlyapplying a heightened form of scrutiny in striking down the criminalization

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Fundamental Right That Dare Not Speak Its Name, 117 Harv. L. Rev.1893, 1917 (2004) (The strictness of the Courts standard in Lawrence,however articulated, could hardly been more obvious.). The Court found afundamental liberty interest in the right [of] homosexuals to engage insodomy. Lawrence, 539 U.S. at 566-67. Notably, at issue in the Lawrencecase was a liberty interest in sexual relations, not the more substantialinterest in maintaining a private family union (as with the Brown family).Nevertheless, liberty required the protection of that private sexual conduct:Liberty protects the person from unwarranted government intrusionsinto a dwelling or other private places. In our tradition the State is notomnipresent in the home. And there are other spheres of our lives andexistence, outside the home, where the State should not be a dominantpresence. Freedom extends beyond spatial bounds. Liberty presumesan autonomy of self that includes freedom of thought, belief,expression, and certain intimate conduct.Id. at 562. The Court rejected the same type of generalized claims of harm tosupport the criminalization of the most private human conduct, sexual behavior,and in the most private of places, the home. Id. at 567. This liberty interest wasfurther amplified in the very first line of Obergefell: The Constitution promisesliberty to all within its reach, a liberty that includes certain specific rights thatallow persons, within a lawful realm, to define and express their identity.Obergefell, 135 S. Ct. at 2593. It is the same liberty interest described in Lawrence26

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that adults may choose to enter upon this relationship in the confines of theirhomes and their own private lives and still retain their dignity as free persons.Lawrence, 539 U.S. at 567. Heterosexual adults are entitled to no less protectionwhen they are not simply engaged in sexual practices common to [their] lifestylebut maintaining families and long-term relations in their private lives.Religious Cohabitation. Even if the Court does not believe that nonreligious cohabitation is protected as a fundamental right, religious cohabitation isbased on such a fundamental right when established through consensual privaterelations. The lower court acknowledged that the Brown family was not (as arguedby the State) demanding the recognition of polygamous unions. Buhman, 947 F.Supp. 2d at 1195. Indeed, the Browns have repeatedly stated that they do notquestion the right of the state to limit the scope of recognized marriages or toprosecute those individuals with multiple marriage licenses. Id. (citing priorfilings). The issue is whether there is a fundamental right not only to maintain thetype of private consensual relations protected under Lawrence but also to maintainsuch relations in conformity with long-standing, recognized religious principles.See, e.g., Moore v. City of E. Cleveland, 431 U.S. at 503 (establishing afundamental interest in familial organization in the home); Griswold v.Connecticut, 381 U.S. 479, 483-84 (1965) (establishing a fundamental right ofmarital privacy over questions of procreation). The combination of free exercise27

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and privacy rights pushes the interests in this case far beyond those in Lawrence.For purposes of substantive due process analysis, heightened scrutiny applies eitherwhen a court identifies a fundamental right or, alternatively, where the law affectsa suspect classification. See, e.g., Molinari v. Bloomberg, 564 F.3d 587, 606 (2dCir. 2009) (rational basis analysis only applied where a statute neither interfereswith a fundamental right nor singles out a suspect classification.) (citations andbrackets omitted); Matsuda v. City & Cty. of Honolulu, 512 F.3d 1148, 1156 (9thCir. 2008) (same); Kamman Inc. v. City of Hewitt, 31 F. App'x 159 (5th Cir. 2001)(same); see also Spiteri v. Russo, No. 12-CV-2780 MKB RLM, 2013 WL 4806960,at *53 n.36 (E.D.N.Y. Sept. 7, 2013) (Under the suspect classification analysis,laws and government actions that affect suspect classes such as race and religionare subject to strict scrutiny) (citation removed). This Circuit has looked foreither a fundamental right or a suspect classification in determining whether toapply heightened scrutiny. See Powers v. Harris, 379 F.3d 1208, 1215 (10th Cir.2004) (applying rational basis test is law does not affect a fundamental right andcategorizes people on the basis of a non-suspect classification). The Browns havearticulated both fundamental rights like Free Exercise and Free Speech as well assuspect classifications based on religion. Further, protection of intimate familial orquasi-familial ties operates with its greatest force when the state intervention takesthe form of a broad criminal sanction. See Lawrence, 539 U.S. at 575 (statute

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rendered certain familial living arrangements criminal); Griswold, 381 U.S. at 48081 (statute rendered dissemination of contraception a misdemeanor).As applied to the Browns, the law criminalizes the familys decision toorganize child-rearing and romantic relationships among multiple partners inaddition to Mr. Browns single legal spouse. It further proscribes the mere act ofcohabitation by these intimately-connected adults, even in the absence of areligious ceremony or other indicia of spousal ties, thereby directly interfering withthe Browns practice of living in the same or adjacent homes. (J.A. at 36-38).Thus, whether facially or as applied, the cohabitation provision impinges uponfundamental Due Process interests.From Lawrence to Obergefell, the Court has been consistent in amplifying acore principle: the Due Process Clause circumscribes and in some cases virtuallyforbids state intervention in private relationships and conduct in the home. Thisprotected relationship does not exist solely in cases of blood relation and legalmarriage. See, e.g., Smith v. Org. of Foster Families for Equal. and Reform, 431U.S. 816, 844-46 (1977) (protecting right of foster parents);13 Eisenstadt v. Baird,

13

Notably, the Holm analysis expressly disclaims any notion that the statemust be initially involved for a marriage to exist, see Holm, 137 P.3d at 733-35,which removes from the countervailing concerns present in Smith, where the fosterchild-parent relationship was created by the state in the first instance.29

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405 U.S. 438, 453-54 (1972) (protecting rights of unmarried individuals); see alsoRoberts v. United States Jaycees, 468 U.S. 609, 621 (1984).14If heightened scrutiny applies, the cohabitation law clearly fails whenapplied to either category of non-religious or religious cohabitation. The Brownswere investigated and no crimes or harm was found in their plural family. Suchharm cannot be assumed any more than it can be for monogamous relationships orcasual relationships in society. Any harm like child abuse or fraud can occur asreadily in non-plural relationships. More importantly, they can be (and are alreadyare) addressed by narrowly tailored criminal laws. Judge Waddoups left in placethe criminalization of bigamy to allow prosecution of anyone who secures orasserts multiple marriage licenses in Utah. The reason that the State did notpresent evidence of harm is that it cannot be presented in a way to justify thecriminalization of polygamous relationships without also justifying thecriminalization of monogamous or adulterous relationships. Once strict scrutiny isapplied, the unconstitutionality of the law is evident.

B.

Even Without Applying Strict or Heightened Scrutiny, the

Cohabitation Provision Would Be Unconstitutional Under ARational Basis Test.

14

The Supreme Courts holding in Vill. of Belle Terre v. Boraas, 416 U.S. 1(1974), is not contrary to this principle. Boraas concerned the states authority tolimit cohabitation of multiple unrelated people in the context of zoning.30

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The lower court ultimately did not require strict or heightened scrutiny tostrike down the cohabitation provision. The rational basis test has been applied tostrike down prior statutes with more developed records of alleged harm than theinstant case. Indeed, if the Lawrence decision did not apply strict or heightenedscrutiny, it clearly laid out a standard of review that cannot be met on the recordcreated by the State in this case.The instant case bears striking similarity to United States Dept of Agric. v.Moreno. 413 U.S. 528, 534 (1973). In Moreno, the federal government claimed arational basis of combatting fraud (as here) with a provision that made householdsineligible for food stamps if they contained a member who was not related to othermembers of the household. The Court struck down the law under a rational basisanalysis and specifically rejected the argument that certain types of householdswere more likely to commit fraud (as in this case). Much like criminalizing allcohabitation by citing a few extreme cases of polygamists, the Court noted that thegovernment could not satisfy a rational basis test with such loose association orextrapolation.But even if we were to accept as rational the Governments whollyunsubstantiated assumptions concerning the differences betweenrelated and unrelated households, we still could not agree with theGovernment's conclusion that the denial of essential federal foodassistance to all otherwise eligible households containing unrelatedmembers constitutes a rational effort to deal with these concerns.

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Id. at 536. The Court also noted that the government had more direct legal meansto combat or sanction fraud. Id.In advancing similar arguments in the instant case, the State ignores theadmonishment of the Supreme Court that the rational basis test is not a toothlessscrutiny. See Mathews v. Lucas, 427 U.S. 495, 510 (1976) (citing, as an example,Jimenez v. Weinberger, 417 U.S. 628 (1974), where it rejected a provisionconcerning illegitimate children as not rationally related to the purpose ofpreventing false claims); see also Copelin-Brown v. New Mexico State Pers. Office,399 F.3d 1248, 1255 (10th Cir. 2005) (striking down a classification for disabledversus non-disabled persons as too attenuated to reducing administrative burdens).Indeed, the Supreme Court struck down the law in Lawrence because such claimsare little more than illustrations of covert (and often overt) bias against alternativelifestyles and relationships. A more recent example of a government action failinga rational basis review occurred in United States v. Windsor, where the SupremeCourt found the federal Defense of Marriage Act invalid because no legitimatepurpose overcomes the purpose and effect to disparage and to injure those whomthe State, by its marriage laws, sought to protect in personhood and dignity. 133 S.Ct. 2675, 2696 (2013); see also Riker v. Lemmon, 2015 U.S. App. LEXIS 14322*13-15 (7th Cir. Aug. 14, 2015) (noting that state shoulders a more demandingstandard even in a case involving prison security).

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This Court has shown the same level of scrutiny under the rational basis testin other areas. In Christian Heritage Acad. v. Oklahoma Secondary Sch. ActivitiesAss'n [OSSAA], this Court recognized several legitimate government purposes fordistinguishing between public and nonpublic schools but rejected OSSAAsmajority voting requirement and those legitimate purposes. Id. This Court deemedOSSAAs dislike of nonpublic schools to not be a legitimate state interest andruled that the voting requirement could not survive rational basis scrutiny. See id.at 1035 (citing U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973)); see alsoRomer v. Evans, 517 U.S. 620, 635 (1996) (rejecting Colorados constitutionalamendment precluding protections for homosexuals under rational basis analysis).Over the last two decades, the Supreme Court has notably struck down stateor municipal legislation using a rational basis standard that is widely perceivedas more demanding when it comes to state justifications for the classification. SeeRomer v. Evans, 517 U.S. 620, 624; City of Cleburne v. Cleburne Living Ctr., 473U.S. 432, 440 (1985); Erwin Chemerinsky, Constitutional Law: Principles andPolicies, 536 (1997); see also Powers v. Harris, 379 F.3d 1208, 1223-25 (10th Cir.2004) (considering this changing case law); Kleinsmith v. Shurtleff, 571 F.3d 1033,1048 (10th Cir. 2009) (same); Massachusetts v. U.S. Dept of Health & HumanServs., 682 F.3d 1 (1st Cir. 2012) (surveying Supreme Court precedent on theadjustment of rational basis review). The more searching rational basis review of

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Cleburne and Romer is justified in part by concerns about legislative animus

toward a politically vulnerable group.Similarly, Lawrence provides more exacting review for state interventioninto conduct that is related but not identical to the acts of familial organizationdiscussed in Griswold and Moore. See also Massachusetts, 682 F.3d at 15 (Forgenerations, moral disapproval has been taken as an adequate basis for legislation .. . . But, speaking directly of same-sex preferences, Lawrence ruled that moraldisapproval alone cannot justify legislation discriminating on this basis.).Accordingly, familial and marital rights, with respect to living arrangements andprocreation, are subject to heightened protection as fundamental interests, whilesexual activity itself is subject to heightened rational basis review because of itsclose connection to intimate relationships that are part and parcel of the familyunit. Lawrence, 539 U.S. at 567. Under Lawrence, moral opposition is aninvalid interest even under rational basis reviewas was the group-based animusunder Cleburne and Romer.Lawrence constitutes the Due Process Clause counterpart to the modifiedrational-basis analysis of Romer and Cleburne: the standard for a permissible staterationale for interference in intimate, consensual adult conduct in the home is more

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demanding than typical rational basis review.15 By its terms, the cohabitationprovision criminalizes the choice to cohabitate with more than one intimate sexualpartner who is deemed married, even if solely in a religious sense.16 Thus, evenif the state does not directly interfere with a fundamental interest, itscriminalization of cohabitation and sexual intimacy is clearly within the scope ofLawrences more exacting rational basis standard.In Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014), this Court ruledagainst state bans on same-sex marriage and distinguished Seegmiller. While theCourt continued its rejection of the protection of the right to engage in privatesexual conduct, it noted that Lawrence stands for the protection of the right tochoose ones lifestyle and intimate relations. It stressed that such liberty interestsnecessarily mean that old concepts of social order can, and must, be set aside in apluralistic society:We must also note that Lawrence itself alluded to marriage, stating that ourlaws and tradition afford constitutional protection to personal decisionsrelating to marriage, procreation, contraception, family relationships, childrearing, and education. 539 U.S. at 574. The Court quoted Casey's holding15

Construing Lawrence as providing for heightened rational basis review also

The Holm Court expressly held that sexual intimacy, in addition to

cohabitation, is one recurring element of the states nebulous definition ofmarriage. Holm, 137 P.3d at 737.35

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that matters involving the most intimate and personal choices a person maymake in a lifetime, choices central to personal dignity and autonomy, arecentral to the liberty protected by the Fourteenth Amendment . . .The drafters of the Fifth and Fourteenth Amendments knew times canblind us to certain truths and later generations can see that laws oncethought necessary and proper in fact serve only to oppress. As theConstitution endures, persons in every generation can invoke itsprinciples in their own search for greater freedom. Id. at 579.Id. at 1218. The Browns are not seeking protection of the right to engage in sexualconduct but to be allowed to structure their family relations in accordance withtheir own moral and personal mores. Under the standard advanced by thegovernment, Utah could still criminalize adultery or cohabitation of unmarriedindividualstwo propositions widely discredited by courts and commentators.This Court has maintained that no one disputes a right to be free fromgovernment interference in matters of consensual sexual privacy. Seegmiller, 528F.3d at 769. This statement is clearly consistent with the Supreme Court casesdiscussed above but means little if mere unpopularity or generalized claims canovercome that right to privacy. The State has simply declared certain privateconsensual relations to be marriage and then criminalized that conduct in the nameof protecting an institution. It, however, remains the consensual sexual privacyof adults as well as the criminalization of religious associations and practices. TheState confirmed that the law was targeting what is effectively adultery, though

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prosecution was focused on religious, as opposed to simply adulterous,

cohabitation. Buhman, 947 F. Supp. 2d at 1213-14. As the lower court noted,The only difference between the two examples is the religious element andthe resulting belief of participants to be justified in holding themselves out tothe public as husband and wife despite knowing that their "marriage" isnot a legal union in the eyes of the State. Both scenariosthe adulterouscohabitation and the religious cohabitationinvolve minors as thechildren born to women involved in such relationships, involve publicconduct, and involve economic implications to [women] and children.Id. at 1223-24. There is no rational basis for the line drawn under the law. As thelower court found, the vague references to harm from extreme polygamouscompounds can be (and already are being) addressed with direct criminal lawsgoverning child abuse, spousal abuse, and welfare fraud in all familiesmonogamous or polygamous. Such a law cannot be upheld in a facial or appliedchallenge without effectively negating any protections afforded under prior casesand gutting the rational basis test established by the Supreme Court.

C.

The District Court Correctly Found That The Cohabitation

Clause Was Void For Vagueness.

The government offers no direct analysis of the standards and case lawunderlying the determination of the District Court that the cohabitation provision isunconstitutional under the void for vagueness doctrine. Indeed, there are only acouple references to vagueness problems in the governments brief, which

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should be deemed to have waived the issue for the purposes of appeal.17 See Riserv. QEP Energy, 776 F.3d 1191, 1201 (10th Cir. 2015) (In [appellants] openingbrief, she does not argue that she satisfied her prima facie case, but simply asserts aprima facie case exists . . . . thus [appellant] has waived this argument.); Reedy v.Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011) (Issues not adequately briefedwill not be considered on appeal.); Burlington N. & Santa Fe Ry. Co. v. Grant,505 F.3d 1013, 1031 (10th Cir. 2007) (We will not review an issue in the absenceof reasoned arguments advanced by the appellant as to the grounds for itsappeal.). The only references to the adjective vague can be found in the generalsection advancing a new interpretation of the law. That amounts to two passingreferences (or three references if the Court includes the reference at the end to theStatutes possible ambitguities [sic]. App. Br. at 40. If the Court is willing totreat this as an appellate argument on a constitutional issue, it is woefullyinadequate.Recently, the Supreme Court reinforced the basis for the lower courtdecision with its ruling in Johnson v. United States, 135 S. Ct. 2551 (2015). In thatcase, the Court considered statutory language that allowed for increased sentencing17

The section of governments brief that is purportedly committed to the void

for vagueness ruling does not argue that specific constitutional issue but repeatsearlier arguments against the substantive due process violation and the use ofLawrence. App. Br. at 55-58. Indeed, the only reference to vagueness at all isfound in the title of the Section.38

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in cases involving a violent felony (defined as a case with a serious potential

risk of physical injury to another.). Even though the Court had twice upheld theresidual clause against void for vagueness arguments, it abandoned those rulingsand found the clause void for vagueness. Id. at 2560 (Nine years experiencetrying to derive meaning from the residual clause convinces us that we haveembarked upon a failed enterprise.). Notably, the government attempted afamiliar argument: arguing that the law is not vague merely because someunderlying crimes may clearly pose a serious potential risk of physical injury toanother. Id.; see also Connally v. Gen. Constr. Co., 269 U.S. 385, 393 (1926)(Penal statutes . . . should not admit of such a double meaning that the citizen mayact upon the one conception of its requirements and the courts upon another.).Much like relying on a subset of extreme polygynist cases like Warren Jeffs, thegovernment seeks to cure the vagueness of the statute by saying that prosecutorscould use discretion in moving against the worst cases (while avoiding adulteryand other cases). In Johnson, however, the Court wrote this Courts repeatedattempts and repeated failures to craft a principled and objective standard out of theresidual clause confirm its hopeless indeterminacy. 135 S. Ct. at 2558.Likewise, the Court has warned about unconstitutional vagueness when lawsappear designed to be a handy vehicle to prosecute people when no other charge isproven. Papachristou v. City of Jacksonville, 405 U.S. 156, 169 (1972) (A

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vagrancy prosecution may be merely the cloak for a conviction which could not beobtained on the real but undisclosed grounds for the arrest.). That is preciselywhat the District Court found with the cohabitation law and the virtually limitlessprosecutorial discretion in the States use of the law. Buhman, 947 F. Supp. 2d at1225-26 (quoting Carhart, 550 U.S. at 150). Just as described in Papachristou, thelower court found that much of the Statutes usefulness, apparently, lies in theStates perception that it can potentially simply charge religious polygamists underthe Statute when it has insufficient evidence of other crimes. Id. at 1216. TheCourt has also stressed (as it did again in Johnson) that the failure of persistentefforts . . . to establish a standard can provide evidence of vagueness. Johnson,135 S. Ct. at 2558 (quoting United States v. L. Cohen Grocery Co., 255 U.S. 81, 91(1921)); see also Lanzetta v. New Jersey, 306 U.S. 451, 458 (1939). Federal courtshave refused to either assume prosecutors or police will render vague languageclear or leave the precise definition of a given crime to the context of the case. SeeLeal v. Town of Cicero, 2000 U.S. Dist. LEXIS 5860, *7-9 (N.D. Ill. Mar. 31,2000) (Without such guidelines, the public is at risk of having a police officertreat two individuals differently though they are engaged in the same conduct.). Itis not enough, as the government suggested, that the absence of clear language isneeded to help prosecute cases with little actual evidence: just because the state

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cant prove it doesnt mean it hasnt happened. Thats whats happening in the[religious] polygamist communities. Buhman, 947 F. Supp. 2d at 1215.The government insists that the District Courts effort to preserve most ofthe statute was itself an absurd result because it was based on the assumptionthat the purpose of Utahs bigamy statute is simply to avoid marriage licensefraud or prohibit libelous claims of multiple marriages. App. Br. at 35. Instead,the State maintains that the purpose is to prevent any and all indication ofmultiple simultaneous marriages. Id. at 36. Putting aside the indeterminacy ofcriminalizing any and all indication of marriage, the State suggests (in conflictwith its earlier position) that such cohabitation might not be always required:targeting multiple marriages and multiple partners, usually cohabitating with oneor more partner [sic] at a time. Id. at 38 (emphasis added).The Appellants new interpretation on appeal only magnifies the issue ofvagueness. There is no indication of what would constitute publicly holdingoneself out as married to more that [sic] one person and cohabitating with them.Id. at 37. For example, the Browns have never claimed to have multiple marriagelicenses. They call themselves spouses according to their faith. Other religious orsocial groups use terms like brother, sister, mother, or father in similarfashion. Moreover, after asking the Court to read in the word and to combine thetwo clauses, the State suggests that cohabitation might not be required for

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prosecution, noting that targets usually cohabitat[e] with one or more partner [sic]at a time. Id. (emphasis added). There is no more explanation given about themeaning of such a newly fashioned statute than there was under the actual statuteanalyzed by the District Court. This Court is simply told that [a] couple canpurport to marry with the intent of creating a lawful marriage or a couple canpurport to marry without the intent of creating a legally congnzible [sic]marriage. Id. at 50. There is no definition on what constitutes [s]olemnizationof a marriage, but the State insists that the Browns are engaged in a criminal actunder the purports to marry prong of the statute because Kody Brown waslegally married to Meri when he subsequently solemnized marital relationshipswith Janelle, Christine and Robyn. Id. at 52.To put it simply, the continuing rhetorical contortions displayed by the Stateon appeal is ample evidence of an incurable vagueness problem. The Constitutionrequires that a penal statute define the criminal offense with sufficientdefiniteness that ordinary people can understand what conduct is prohibited and ina manner that does not encourage arbitrary and discriminatory enforcement.Carhart, 550 U.S. at 148-49, (2007). Not only do people of ordinary intelligencehave difficulty in understanding what is prohibited, Utah counsel evidenced thesame difficulty at both the trial and appellate level. Carhart, 550 U.S. at 149(quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). It does not cure

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and only magnifies the problem when the State insists that it rarely targets peopleunder the law. That position, supporting arbitrary or discriminatory enforcement,only adds to the unconstitutional vagueness of the law. The notion that thegovernment will simply pick targets among a huge number of cohabitating adultsis the very antithesis of what the Supreme Court has stated is the obligation of thegovernment to articulate its aims with a reasonable degree of clarity [in order to]ensure[] that state power will be exercised only on behalf of policies reflecting anauthoritative choice among competing social values, reduce[] the danger of capriceand discrimination in the administration of the laws, enable[] individuals toconform their conduct to the requirements of law, and permit[] meaningful judicialreview. Roberts v. United States Jaycees, 468 U.S. 609, 629 (1984). The resultwas aptly described by the lower court as apparently limitless prosecutorialdiscretion in whether and whom to prosecute under the Statute [that] vestsvirtually complete discretion in the hands of [law enforcement and prosecutors] todetermine whether people cohabiting in the State of Utah for whatever reason, butparticularly those involved in religiously motivated cohabitation, have violated theStatute's cohabitation prong. Buhman, 947 F. Supp. 2d at 1225-26 (quotingCarhart, 550 U.S. at 150).

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THE DISTRICT COURT CORRECTLY FOUND THAT UTAHS

CRIMINALIZATION OF COHABITATION VIOLATED THE FREEEXERCISE CLAUSE OF THE FIRST AMENDMENT.The Appellant challenges the free exercise analysis of the lower court based

entirely on its application of the strict scrutiny standard. Specifically, the

government argues that prior case law is controlling on the question of whether thecohabitation provision is operationally neutral. The government misconstrues thepast precedent as well as the decision of the lower court. While the lower courtfound the law to be facially neutral, it found (in part based on the uncontestedrecord) that the law did indeed target religious polygamists. Despite thegovernments acknowledgement of the lower courts wonderfully thorough job ofcovering the history, purpose and case law surrounding the area, App. Br. at 35, itseems intent again on treating this Court as a trial court for the purposes ofintroducing new arguments and factual assertions. Both the case law and therecord in this case are clear on applicability of a strict scrutiny standard. However,the cohabitation provision would fail as easily on this record under an intermediateor rational basis test.

A.

The District Court Correctly Applied The Strict Scrutiny Test In

Finding A Violation of the Free Exercise Clause.

Utah Code Ann. 76-7-101 imposes a substantial burden on the free

exercise of religion for the Brown family and other plural families. As noted,44

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much has changed since the Reynolds decision in 1878. Cf. Cty. of Allegheny v.ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 603 (1989) (holding thathistory cannot legitimate practices that demonstrate the government's allegianceto a particular sect or creed.). As found by the District Court, the statute was notoperationally neutral under the standard laid out in Church of Lukumi Babalu Aye,Inc. v. City of Hialeah, 508 U.S. 520 (1993).The Supreme Court has mandated different tests under the Free ExerciseClause depending on the context of the violation. If a law is neutral and ofgeneral applicability it need not satisfy a compelling governmental interest. SeeSmith, 494 U.S. at 890; Hialeah, 508 U.S. at 531. The Supreme Court has stressedthat strict scrutiny applies if a law is not completely neutral or if it is appliedagainst particularly religious practices or beliefs: [n]eutrality and generalapplicability are related, and, as becomes apparent in this case, failure to satisfyone requirement is a likely indication that the other has not been satisfied. A lawfailing to satisfy these requirements must be justified by a compellinggovernmental interest and must be narrowly tailored to advance that interest.Hialeah, 508 U.S. at 532-33; see also Combs v. Homer-Center Sch. Dist., 540 F.3d231, 242 (3d Cir. 2008) (A law fails the general applicability requirement if itburdens a category of religiously motivated conduct but exempts or does not reacha substantial category of conduct that is not religiously motivated and that

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undermines the purposes of the law to at least the same degree as the coveredconduct that is religiously motivated.); Blackhawk v. Pennsylvania, 381 F.3d 202,209 (3d Cir. 2004) (same). Thus, [o]fficial action that targets religious conductfor distinctive treatment cannot be shielded by mere compliance with therequirement of facial neutrality. Hialeah, 508 U.S. at 534. The Court looks tohow the law is actually used [a]part from the text, the effect of a law in its realoperation is strong evidence of its object. Id. at 535.Once again, it is important to stress that this case is not about bigamy, whichwas preserved by the lower court as a crime, but cohabitation. In that sense, manydecisions like Green are only tangentially relevant to the constitutional analysis.As for bigamy, there may be less operationally or as applied bias since the state isprosecuting anyone with multiple marriage licenses or engaged in marital fraud. Itcan still do so after the ruling of the District Courtmuch like most other states.Thus, the Utah Supreme Court in Green relied on the Geer case, which was aconventional bigamy case of a man with thirteen marriages. See State v. Geer, 765P.2d 1 (Utah Ct. App. 1988). Bigamy is a neutral and clearly defined crime.Cohabitation is not.Hialeah is particularly illuminating on this point. In that case, a cityordinance of Hialeah was worded neutrally in regulating animal sacrifice andcovered any individual or group that kills, slaughters or sacrifices animals for any

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type of ritual, regardless of whether or not the flesh or blood of the animal is to beconsumed. Hialeah, 508 U.S. at 527. Much like the criminalization of pluralrelationships, the ordinance was defended as neutral. The city prevailed on thatbasis at both the trial and appellate court, but the Supreme Court reversed, holdingthat the law was not neutral and that strict scrutiny was justified. The Courtexpressly rejected the claim of the city that the Courts inquiry must end with thetext of the laws at issue [because] [f]acial neutrality is not determinative. Id. at534. The Court held that discriminatory laws are often written in neutral languagewhen they are in reality covert suppression of particular religious beliefs. Id.(quoting Bowen v. Roy, 476 U.S. 693, 703 (1986)).As the District Court carefully detailed, the Utah law was drafted with theclear intent of criminalizing the practice of polygamy or plural marriage amongUtah religious organizations like the Fundamentalist Church of Jesus Christ ofLatter Day Saints (FLDS) and the Apostolic United Brethren (AUB). In 1894,Congress passed the Utah Enabling Act. The Act authorized the territory of Utahto ratify a constitution and be admitted to the union provided that polygamous orplural marriages shall be forever prohibited. By placing the prohibition onpolygamy in the same section intended to protect religious liberty, the Enabling

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Act undoubtedly targeted polygamy for its religious motivation.18 The statute hasonly been used against such religious families despite the fact that cohabitationwould extend to a myriad of plural relationships among non-religious individuals.Just as the prohibition on the slaughter or sacrifice of animals was a covert effort totarget Santera, the cohabitation provision is an effort to combat religiouspolygamy in the state. As such, the strict scrutiny standard should apply.19This Court previously based its decision on the compelling interest on theright of the majority to dictate its preferred fundamental values that areinextricably woven into the fabric of our society. It is the bedrock upon whichour culture is built. Potter, 760 F.2d at 1070. These are the same fundamental

18

A review of the Mormon Cases before the Supreme Court reflects thesame nexus. See Davis v. Beason, 133 U.S. 333, 342 (1890) (insisting that earlyMormonism was not a religion afforded protection under the First Amendmentbecause it is a cultus.); Late Corp. of the Church of Jesus Christ of Latter-DaySaints v. United States, 136 U.S. 1, 49 (1890) (referring to the LDS Church as areturn to barbarism and contrary to the spirit of Christianity.).19

As noted earlier, the decision in Potter v. Murray City, 760 F.2d 1065 (10thCir. 1985) does not alter this result as previously discussed. Even if one were toaccept the case as controlling on a facial challenge, it would not be determinativein the accompanying as applied challenge in this case. Moreover, this is achallenge to the criminalization of private conduct and the selective targeting ofthis one family. This Court emphasized that [s]electivity in the enforcement oflaws is subject to constitutional constraints and noted that such selectiveenforcement cannot be deliberately based upon an unjustifiable standard such asrace, religion, or other arbitrary classification. Potter, 760 F.2d at 1071.

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values that supported the criminalization of homosexual relations. It is precisely

the argument made in dissent in Lawrence and rejected by the Supreme Court:The condemnation has been shaped by religious beliefs, conceptions of rightand acceptable behavior, and respect for the traditional family. For manypersons these are not trivial concerns but profound and deep convictionsaccepted as ethical and moral principles to which they aspire and which thusdetermine the course of their lives. These considerations do not answer thequestion before us, however. The issue is whether the majority may use thepower of the State to enforce these views on the whole society throughoperation of the criminal law.Lawrence, 539 U.S. at 571. The Court answered that question in the negative. Id.While discussing due process, the Court stressed that there is a difference betweenofficial recognition and criminalizationthe very distinction drawn in this case:[The case] does not involve whether the government must give formalrecognition to any relationship that homosexual persons seek to enter. Thecase does involve two adults who, with full and mutual consent from eachother, engaged in sexual practices common to a homosexual lifestyle. Thepetitioners are entitled to respect for their private lives. The State cannotdemean their existence or control their destiny by making their privatesexual conduct a crime.Lawrence, 539 U.S. at 578.The cohabitation provision raises many of the issues addressed in HosannaTabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694 (2012).The Court stressed the need for the Religion Clauses to protect religiousorganizations from governmental regulations that infringe on their faith-baseddecisions and practices, particularly in a religious organizations freedom to selectits own ministers. Id. at 706. By analogy, this case raises the question of a49

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religious groups freedom to choose its own marriage structureso long as itsparticipants are consenting adults. While other citizens openly live in pluralrelationshipsmany with children by different partnersreligious polygamistsface the threat of prosecution for openly proclaiming their spiritual spouses.The cohabitation provision has been applied to a tiny fraction of those adultsengaging in such unions. Cohabitation is now the norm in our society with recentstudies showing that the number of married households have fallen from 72percent in 1960 to 50 percent in 2012. Andrew L. Yarrow, Falling Marriage RatesReveal Economic Fault Lines, N.Y. Times, Feb. 6, 2015. The percent of those whohave multiple sexual partners has also increased. See generally The LoadstoneRock, supra, at 1908-09. As the Chief Justice of the Utah Supreme Court hasnoted, the cohabitation of unmarried couples, who live together as if they aremarried in the sense that they share a household and a sexually intimaterelationship, is commonplace in contemporary society. Holm, 137 P.3d at 771-72(Durham, C.J., dissenting in part) (citing data from the Utah Governors Commnon Marriage & Utah State Univ. Extension, Marriage in Utah Study 35-36 (2003)that up to 46 percent of people between the ages of eighteen and sixty-four werecohabitating outside of marriage). Despite the existence of laws criminalizingadultery (Utah Code Ann. 76-7-103 (2013)) and fornication (Utah Code Ann. 76-7-104 (2013)), those laws are not being enforced. It is religious cohabitation

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that has been prosecuted. Cf. Green, 99 P.3d at 833 n.16. (acknowledging that theword cohabit could be problematic . . . [and] deserv[ing of] legislativeconsideration.).The only distinguishing factor between millions of cohabitation cases thatare not prosecuted and those that are targeted for prosecution in Utah is thesolemnization or religious element associated with families like the Browns. TheState admitted that it did not prosecute adulterous cohabitation alone and that thestatute was conceived and has been applied as a criminalization of religious unions.Assistant Attorney General Jerrold S. Jensen, counsel for Appellant, conceded thatso long as the individuals did not make a claim of spiritual marriage, they couldcohabitate, have children, and live together. Judge Waddoups noted that theproblem is deciding what constitutes a marriage for purposes of this act. Buhman,947 F. Supp. 2d at 1214.THE COURT: Okay. Lets suppose that he says the same thing, but he saysit to his Jewish rabbi, does that now become a polygamist marriage? Andthe rabbi says I bless you and recognize you as husband and wife.MR. JENSEN: Well, if they are holding themselves out as husband and wife,I would recognize that as marriage.THE COURT: So is it the recognition by a religious organization that itbelieves that they are living together in a recognized relationship by thereligion sufficient?MR. JENSEN: No, no, no. . . . I think its the representation that they maketo the world as to what is their relationship. If they make it as husband andwife, then that constitutes marriage under the statute.51

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THE COURT: If they say were not husband and wife, we just live together,then its not under the statute.MR. JENSEN: Then it's not governed under the statute.(Id. at 12:6-13:4.). It is the solemnization of such relationships in a religiousceremony or recognition that is a critical factor in the application of this lawamong hundreds of thousands of such relationship in the State. There is nosolemnization of relationships cited by the State that is not religious in nature;such ceremonies have been entirely part of fundamentalist Mormon practices.Indeed, this point was also conceded by the State:MR. JENSEN: Well, there is no question that polygamy is associated withreligion in this state. Not all of the cases that have been prosecuted in thisstate are against people that assert religion as a defense. There has beencases in which there was not religion.THE COURT: But arent those cases all where there was legally recognizedmarriages claimed as to both spouses.MR. JENSEN: Yes, yes, yes.THE COURT: Thats a different scenario than what were talking abouthere. . . .(Id. at 16:2-16.) So that there was no mistake about the position of the State andthe operation of the statute, the Court returned later to confirm what was concededby the State:MR. JENSEN: [B]ut the issue as to cohabitation in the statute, and I thinkthe statute has to be looked at clearly, the cohabitation in the statute onlyapplies when someone holds themselves out to be married. That is a52

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different situation than cohabitation that generally exists in the state. . . .

[I]ts not marriage but they know the other person is married. So they'recohabiting. That is different than just cohabitation. Two people can go outand cohabit, and lets admit, it goes on all the time. But in this situationunder the statute they're not prosecuted unless the one cohabiting knows thatperson is married. Its the same as with marriage.THE COURT: So it applies to an adulterous relationship? By definition,adultery is a person who is married and has intimate relationships withanother person to whom he is not married. Thats what youve justdescribed.MR. JENSEN: All right, Your Honor. But lets look at how this reallyworks in practice. In practice there is the marriage, it may not berecognized by the state, but it is a marriage, it's performed, there is awedding ceremony performed, there are vows exchanged. The problem isproving it. The federal government had that problem in the 1880s. That'swhy they added cohabitation to the Edmunds Statute. The same thing withthe Utah statute. The problem was proving that they were married, so theyhave added cohabitate, but the person has to cohabitate knowing that otherperson is married. . . .THE COURT: So tell me whats different between adultery and whatyou've just described.MR. JENSEN: The one is that they claim to be married. But just becausethe state cant prove it doesnt mean it hasnt happened. Thats whatshappening in the [religious] polygamist communities.THE COURT: So its the expression of the fact that the person is a wife thatmakes it illegal.MR. JENSEN: Yes.(Id. at 51:17-53:22 (emphases added).) There was no such record in prior casesbefore this Court, and this case (unlike the prior cases) does not involve bigamy,child or spousal abuse, or welfare fraud. Given these admissions and the record of

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cases in the State, it is obvious that the law is not neutral as applied oroperationally under Hialeah. It is the religious motivation and solemnizationthat is used to target families like the Browns. See Hialeah, 508 U.S. at 533.The record in this case also belies any notion that the law is generallyapplicable. Indeed, as stressed in Hialeah, [n]eutrality and general applicabilityare related, and . . . failure to satisfy one requirement is a likely indication that theother has not been satisfied. Id. at 532-33. Even in pursuit of legitimateinterests, the State cannot in a selective manner impose burdens only on conductmotivated by religious belief. Id. at 543. The lower court found a pattern ofselective prosecution that targeted religious families while ignoring the vastmajority of adulterous cohabitation in the State. Indeed, the State established thatit is most likely to proceed against anyone who speaks publicly about suchrelationships, an arbitrary distinction that raises a host of free speech issues.Buhman, 947 F. Supp. 2d at 1216. The Court also found that much of theStatutes usefulness, apparently, lies in the States perception that it can potentiallysimply charge religious polygamists under the Statute when it has insufficientevidence of other crimes. Id. Finally, the Court noted that this case wasillustrative of the selective prosecution policies under the law with the Appellantfirst adopting a new policy not to prosecute the Browns but then admitting thathe was not bound to follow that policy. Id. at 1216-17. The cohabitation provision

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cannot be sustained absent a showing that it is justified by a compelling

governmental interest and narrowly tailored to advance that interest. Hialeah,508 U.S. at 533; cf. Wisconsin v. Yoder, 406 U.S. 205, 215 (1972); see alsoBurwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2780-82 (2014) (rejectingcontraceptive mandate as the least restrictive means for achieving compellinginterest under Religious Freedom Restoration Act).The use of the cohabitation provision is not necessary to protect the Statesinterest in regulating marriage. That interest is protected under the bigamyprovision that was not challenged by the Browns and was not altered by theDistrict Court. The government cannot use this general interest to criminalizecohabitation any more than it can do so to criminalize adultery or fornication asinimical to good family life. That ship has sailed with cases over a decade ago likeLawrence. Moreover, given the States position that it does not view theubiquitous presence of cohabitation and adultery as a cause of prosecution, it ishard to see the nexus between the cohabitation provision and the interest inprotecting the institution of marriage in the State. Indeed, absent a publicsolemnization or recognition of a plural union, the State does not prosecute andonly a small number of such cases are brought. The District Court found thisinterest not only unsupported on the record but felt compelled to identify anabsurdity in the State's position in trying to combat the problem of the decline in

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number of people marrying in our society by penaliz[ing] people for making a

firm marriage-like commitment to each other. Buhman, 947 F. Supp. 2d at 1218-19.As the Supreme Court held in Yoder, 406 U.S. at 215 (1972), the essence of allthat has been said and written on the subject [of the Free Exercise Clause] is thatonly those interests of the highest order and those not otherwise served canoverbalance legitimate claims to the free exercise of religion.It is equally absurd to claim that the cohabitation provision (as opposed tothe bigamy provision) is needed to support the States interest to prevent marriageand benefits fraud. The Browns were very open about their single marriage licenseand spiritual relationships. Indeed, it is difficult to imagine a more transparentfamily. The Browns were investigated for years and were not found to haveengaged in any fraud for benefits.20 The justification of barring religiouscohabitation because some abusers have come from inside such families is nobetter than barring groups based on race or gender on anecdotal belief that they aremore likely to commit certain crimes.Finally, there is no cognizable basis for maintaining that the cohabitationprovision protects vulnerable individuals from exploitation and abuse. Green,20

Indeed, this argument resembles the claim rejected in United States v.

Alvarez, 132 S. Ct. 2537 (2012), where the government sought to criminalize lyingabout military honors or so-called stolen valor. The Court found that thegovernment had other means to address such crimes and the government failed toshow the least restrictive means to protect these interests.56

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99 P.3d at 830. Discussing individual cases like that of Warren Jeffs does notreveal the percentage of such abuses among plural families or establish that suchextreme cases are indicative of the wider array of such families for the purposes ofharm. There is little value to such studies without knowing the prevalence of theabuses within a defined class. Indeed, this argument is often made without lookingat the rate of abuses associated with monogamous marriages or non-marriedfamilies. Obviously, there are a high number of cases of spousal and child abuse inmonogamous unions.21 A court cannot assume that the rate of abuse that occurs inplural unions is the inherent and unchanging profile for this group any more than itcan for monogamous unions.Accordingly, the District Court correctly found that the cohabitation prongnot only is not narrowly tailored to advance a compelling State interest but that itactually inhibits the advancement of this compelling State interest of protectingvulnerable individuals from exploitation and abuse. Buhman, 947 F. Supp. 2d at1221 (quoting Green, 99 P.3d at 830).

21

Some groups report that one out of every four women are victims ofdomestic abuse. See, e.g., Domestic Violence: Statistics & Facts, SAFEHORIZON,http://www.safehorizon.org/page/domestic-violence-statistics--facts-52.html (lastvisited May 2, 2015). Other groups put the number of children abused in homes inthe United States at over 3 million annually. See The Effects of Domestic Violenceon Children, DOMESTIC VIOLENCE ROUNDTABLE,http://www.domesticviolenceroundtable.org/effect-on-children.html (last visitedMay 2, 2015). The vast majority of such cases occur in conventional families.57

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Even Without Applying A Strict Scrutiny Test, The Cohabitation

Provision Would Fail A Rational Basis Test.

If the Court were to find that the cohabitation provision is facially andoperationally neutral and not subject to a strict scrutiny analysis, the governmentsarguments would still have to meet a rational basis. See generally Taylor v.Roswell Indep. Sch. Dist., 713 F.3d 25, 52 (10th Cir. 2013); Axson-Flynn v.Johnson, 356 F.3d 1277, 1294 (10th Cir. 2004). The Appellant offers just onepage of support for a rational basis to support the law under a Free Exerciseanalysis. App. Br. at 44-45. The claims advanced on appeal are little more thangeneralities such as barring bigamy serves Utahs best interests. Id. at 44. Theentirety of the rational basis showing offered to the Court is:Utah has an interst [sic] in regulating marriage because it is an importantsocial unit. . . Utah additionally has an interest in prohibiting polygamy inorder to avoid marriage fraud as well as to prevent the exploitation ofgovernment benefits for people with a marital status. . . . The Statute alsoassits [sic] the States interests in protecting women and children fromcrimes such as statutory rape, sexual assault, and failure to pay child support.Id. at 44-45. The Court is expected to simply accept such claims as manifestly true.However, bigamy is still a crime in Utah and the lower court specifically tailoredthe opinion to allow for the prosecution of marriage fraud. The State offersnothing to show why people who merely cohabitate as plural familiesoverwhelmingly commit fraud or exploit benefits (or how such families exploitbenefits in higher numbers than monogamous families). Likewise, there are tens

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of thousands of religious cohabitants in Utah and many more non-religious

cohabitants. The State has offered nothing to show that people that cohabitate arecausing substantially higher numbers of rapes and assaults as a class (or again howthose cases measure up against such abuses in monogamous or non-cohabitatingrelationships). The State is arguing that, regardless of the fact that the Brownshave never been accused of such abuses, their family should be defined as acriminal enterprise because other people in such relationships have committedcrimes. A far greater number of cases of child and spousal abuse are tried everyyear in monogamous families without such a presumption. Likewise, a state couldargue that homosexual relationships are known to have a higher incidence of AIDSor of sex-related crimes as the basis for re-criminalizing homosexual relationships.The Court struck down the law in Lawrence based on such unsupportedpresumptions and bias against alternative lifestyles and relationships. The sameshould be true in this case.

V.

THE DISTRICT COURT CORRECTLY FOUND THAT THE

STATUTE WAS UNCONSTITUTIONAL UNDER A HYBRID CLAIMANALYSIS.The lower court held separately that this case constitutes a hybrid

1221-22. Once again, the Appellant has elected not to argue against this holding of

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the District Court. The only reference to the hybrid claim comes in the summaryof arguments when the government states there is no so-called hybrid rights claimhere because neither the Lawrence Due Process analysis nor the Reynolds barredFree Exercise claims can serve as the basis for a hybrid rights claim triggeringstrict scrutiny. App. Br. at 12. Stating little more than the Courts wrong is notan appellate argument under the federal rules. It is grossly unfair and a clearviolation of federal rules to decline to argue an issue and then file arguments in areply brief when the Appellee cannot respond. The Browns are left again in aposition to try to guess what arguments may be made to refute them.22Accordingly, the government should not be allowed to argue this issue on appeal.Fed. R. App. P. 28(a)(8)(A) (brief must contain: appellants contentions and thereasons for them, with citations to the authorities and parts of the record on whichthe appellant relies.); United States v. Kunzman, 54 F.3d 1522, 1534 (10th Cir.1995) (It is insufficient merely to state in ones brief that one is appealing anadverse ruling below without advancing reasoned argument as to the grounds forthe appeal.)22

Indeed, the District Court chastised the Appellant for his failure to argue avariety of claims. Buhman, 947 F. Supp. 2d at 1181 n.8 (quoting Def.s ReplyCross-Mot. Summ. J. 4) (The court is not impressed with Defendant'scharacterization of Plaintiffs serious and substantial legal arguments in support ofeach of their Constitutional claims (Due Process, Equal Protection, Free Speech,Free Association, Free Exercise, and Establishment of Religion) as merely aphilosophical discussion about legal theories.).60

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The Appellant does not specifically contest the District Courts

determination that each of Plaintiffs companion constitutional claimstheFreedom of Association claim, the Substantive Due Process Claim, the EqualProtection Claim, the Free Speech Claim, or the Establishment Clause claim, eachas argued in Plaintiffs' Memorandum in Support of their Motion for SummaryJudgment (Dkt. No. 50), and each largely or entirely unopposed by Defendant(with the exception of the Substantive Due Process claim)makes a colorableshowing of a constitutional violation, thus requiring heightened scrutiny of theStatute under Smith. Id. at 1222. When a free exercise claim is raised inconjunction with companion rights like free speech, the strict scrutiny standard isapplied. See Smith, 494 U.S. at 882; Grace United Methodist Church v. City ofCheyenne Bd. of Adjustment, 451 F.3d 643, 655 (10th Cir. 2006); Axson-Flynn v.Johnson, 356 F.3d 1277, 1296-97 (10th Cir. 2004). The secondary or companionright need not be proven, but rather a plaintiff need only raise a colorable claimthat a companion right has been violated. San Jose Christian Coll. v. MorganHill, 360 F.3d 1024, 1032 (9th Cir. 2004); see also Axson-Flynn, 356 F.3d at 1297.A colorable claim is viewed as a fair probability or a likelihood, but not acertitude, of success on the merits. San Jose Christian Coll., 360 F.3d at 1032;see also Axson-Flynn, 356 F.3d at 1297. The District Court found such a claimhad been made. Buhman, 947 F. Supp. 2d at 1222. Plaintiffs documented, for

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example, the denial of their associational and speech rights when the governmenttargeted them after they publicly revealed their plural family. The Browns weretargeted due to their public statements as part of their television program andAppellant publicly associated his investigation with the public statements(including declaring that the family was committing felonies every night on theirprogram.). Id. at 1179. The government does not address those rights in its appealand the cohabitation provision should fail under the unchallenged hybrid analysisof the District Court in its opinion below.

VI.

THE DISTRICT COURT CORRECTLY FOUND THAT APPELLEES

WERE ENTITLED TO FEES UNDER SECTIONS 1983 AND 1988.As with other claims in this litigation, the Section 1983 claim was simplified

by a failure of the government to raise any defense. Indeed, until he was foundliable, the government said nothing at all about either Section 1983 or damagesunder the section. After ordering supplemental briefing on the Browns claimunder 42 U.S.C. 1983 (J.A. at 888), Judge Waddoups found that the Defendanthad waived his defenses:Defendant . . . has waived his various immunity defenses by not raising themin his Answer, as was his duty under Rule 8(c)(1) of the Federal Rules ofCivil Procedure, or opposing or mentioning Plaintiffs assertion of theirSection 1983 claim in their Complaint, their Motion for Summary Judgment,and their Opposition to Defendants Cross-Motion. The court must viewthis as a conscious decision on the part of Defendant, a decision that hasconsequences under the orderly administration of justice in the federal62

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courts. . . . The Court must therefore agree with Plaintiffs that Defendantsapproach of neither raising the defenses of qualified immunity orprosecutorial immunity as affirmative defenses, or even mentioning them inthe briefing responding to Plaintiffs Section 1983 claim constitutes a waiverof these defenses.Brown v. Herbert, 43 F. Supp. 3d 1229, 1232 (D. Utah 2014). Indeed, the lowercourt agreed that the government was trying to claim the judicial equivalent of aMulligan for the hapless or absent litigant. Id. (quoting Pl.s Resp. to Court Order14). Undeterred by that decision, Appellant is seeking to secure the same type ofMulligan on appeal.The lower court found that the Browns sufficiently stated a claim for moneydamages under 1983 in addition to the injunctive and constitutional relief thatthey sought. (J.A. at 726). Further, the lower court granted summary judgment forthe Browns on the entirety of their 1983 claim. Appellant does not challenge theinjunctive and declaratory relief granted by the District Court on the 1983 claim.App. at 54 n.4. Instead, he attempts belatedly to challenge the finding that theComplaint stated a claim for 1983 money damages. Id. at 53.23 After prevailingon the claims in this litigation, the Browns sought to show good faith in facilitating

23

Additionally, Appellant does not argue that the Browns claim moneydamages to have properly secured declaratory relief or attorneys fees for theviolations found by the Court. Indeed, the Browns may prevail on their 1983claim without pursuing retrospective pecuniary relief. See Ward v. Utah, 321 F.3d1263, 1269 (10th Cir. 2003) (finding that a declaratory judgment and injunctiverelief was sufficient to redress injuries without retroactive damages).63

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a resolution in the case by waiving certain damages. Though they properly

pleaded money damages in connection with their 1983 claim, the Browns electednot to seek damages at the District Court below. Instead, the Browns simplyreserved the right to seek attorneys fees as a prevailing party pursuant to Section1988. (J.A. at 654). The decision was based on a desire to bring years of litigationto an end.24In a demonstration that no good deed goes unpunished, Appellant seizeson this concession and attempts to enlist this Court in penalizing the Browns fortheir decision to streamline the litigation process. He argues that the claim formoney damages was rendered moot by their decision to not have a trial on thisissue. App. Br. at 54. However, the Browns election not to actively pursuemonetary relief after they had pleaded the 1983 claim did not alter that they werenevertheless entitled to specific damages that the District Court may have deemedproper under 1983. See Fed. R. Civ. P. 54(c) (a final judgment should grant therelief to which each party is entitled, even if the party has not demanded that reliefin its pleadings.) (emphasis added); cf. Holt Civic Club v. City of Tuscaloosa, 439U.S. 60, 66 (1978) (noting that omissions in a plaintiffs prayer for relief [are] nota barrier to redress of a meritorious claim.).

24

Ultimately, parties reached a compromise on fees pending the outcome of

this appeal to avoid unnecessary litigation.64

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Appellant Waived Any Defenses to Damages

Appellant makes the astonishing assertion that he was not required to assertany affirmative defenses in response to claims under 1983 because the defenseswere not germane to the claims Plaintiffs pleaded . . . . App. Br. at 63.Appellant insists that he concluded, quite on his own, and in contradiction thelower courts ultimate finding, that the Browns were only seeking injunctive relief,and not money damages. Id. However, this flimsy (and ultimately incorrect)conclusion does not give the government a license to ignore proper practices andnot even mention any affirmative defenses. Choices have consequences inlitigation. A failure to assert a defense can only be classified as waiver if federalrules of practice are to have any meaning.In the vast majority of cases, defendants follow the best procedure ofpleading immunity in their answer or amended answer. Ahmad v. Furlong, 435F.3d 1196, 1202 (10th Cir. 2006). In this case, however, Appellant neverarticulated a defense to the 1983 claim, neither in his answer nor in anysubsequent briefing.25 It is well settled that the failure to plead an affirmative

25

The Complaint explicitly raised claims under 1983 in multiple places. SeeCompl., 29, 231 (J.A. at 16-55). In response, the Defendants answer merelydenies that the U.S. Constitution affords [the plaintiffs] the relief they seek,, Ans. 21 (J.A. at 266-286), in direct response to Compl. 29, which explicitly states thePlaintiffs [are] bring[ing] this action pursuant to 42 U.S.C. 1983, Compl. 29(J.A. at 22). Additionally, in the section entitled Seventh Claim For Relief: 42U.S.C. 1983, the Plaintiffs again explicitly refer to the Defendants deprivation65

of the Plaintiffs rights in violation of 42 U.S.C. 1983. Compl. 231 (J.A. at 38).The answer, however, only denies the allegations contained in paragraph 231.Ans. 94 (J.A. at 278). Moreover, not one of the thirty-five separate defensesoffered in the answer makes any mention of qualified immunity, 1983, or anyother affirmative defense.66

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the defense during pretrial proceedings and ensure it is included in the pretrialorder. Evans v. Fogarty, 241 F. Appx 542, 550 n.9 (10th Cir. 2007).B.

The District Court Did Not Err in Finding That the ComplaintProperly Pleaded a Claim for Money Damages.

Putting aside these waiver issues, the fact remains that the Browns did pleada claim for money damages. While ultimately asking for less in damages than theamount to which they are legally entitled, the Browns did not render the issue mootfor the lower court since the breadth of relief is still available to the trial court.This Court has held that in determining whether a certain type of relief may beawarded, the critical question is whether the complaint gave any indication that[the plaintiffs] might be entitled to that relief. Calderon v. Kansas Dept of Soc.& Rehab. Servs., 181 F.3d 1180, 1183 (10th Cir. 1999) (citing Pension BenefitGuar. Corp. v. E. Dayton Tool & Die Co., 14 F.3d 1122, 1127 (6th Cir. 1994)); seealso Conley v. Gibson, 355 U.S. 41, 47 (1957). Thus, where a plaintiffs complaintalleges specific injuries and includes a general prayer for relief, it is presumed thatany appropriate form of relief is sought, in addition to those expressly requested.See Frazier v. Simmons, 254 F.3d 1247, 1255 (10th Cir. 2001) (request formonetary damages and such other relief as the court deems just and equitablewas adequate indication that he also sought injunctive relief in relation to anEleventh Amendment immunity defense).

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Relying on this Courts decision in Frazier, the court below noted that theBrowns had unambiguously asserted a number of specific injuries in theirComplaint that entitle them to monetary damages. Buhman, 43 F. Supp. 3d at1231. Quoting the Complaint, the court also noted that the Complaint sought torecover all of their attorneys fees, costs, and expenses incurred in this actionpursuant to 42 U.S.C. 1988, and any other relief that this Court may order. Id.(emphasis in the courts order). Finally, the lower court recognized that theAppellees specifically included a request that the court award such other relief asit may deem just and proper. Id.In response to the lower courts order, Appellant points to numerousinstances where, in addition to seeking monetary damages, Appellees soughtdeclaratory and injunctive relief. App. Br. at 56-58. Of course, this argument isunavailing. It is axiomatic that a partys requests for equitable relief are not a barto requests for damages.The Appellant also argues that this Courts decision in Frazier v. Simmons,254 F.3d 1247 (10th Cir. 2001) is inapplicable and should not have been reliedupon by the lower court. Frazier is both applicable and instructive. In Frazier, thedefendant argued that the plaintiff had failed to adequately request injunctiverelief. Id. at 1253-54. Looking to its decision in Calderon, this Court in Fraziernoted that the threshold question is whether plaintiffs complaint gave any

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indication that she might be entitled to injunction relief. Frazier, 254 F.3d at1254 (emphasis in original). This Court then held that the plaintiff providedsufficient indication that he sought equitable relief, including because of the[t]he nature of the harms [plaintiff] alleged he suffered makes his claimsamenable to injunctive relief, and because he included a general request forequitable relief. Id. at 1255.The government attempts to limit the holding of Frazier by the mere factthat the general prayer for relief included the word equitable. App. Br. at 60.This choked reading of Frazier is unsupported by the case. In fact, the testarticulated by Frazier and Calderon concerns whether, as a whole, a plaintiffspleadings give any indication of the relief requested, and whether the nature ofthe harms alleged are amenable to the relief requested.Here, as the lower court noted, the Complaint unambiguously asserted anumber of specific injuries in their complaint that entitled them to monetarydamages, and more than once implored the court to grant any just relief. (J.A. at727). For example, the Complaint stated that the threat of prosecution compelledthe family to move from Utah to Nevada and led to Meri Browns terminationfrom her long-held job. (J.A. at 45-46). Further Kody Brown declared underpenalty of perjury that it cost thousands of dollars to move the family to

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Nevada.26 Id. at 105-06. Those allegations, in tandem with the request that theCourt [a]ward such other relief as it may deem just and proper, provide ampleindication that the Browns were entitled to both retrospective and prospective reliefas the lower court may have found appropriate. Further, the nature of the harmsalleged, including financial damages resulting from Appellants conduct, areamenable to a finding that money damages were sufficiently pleaded. See Frazier,254 F.3d at 1255. As instructed by this Courts precedents, the lower courtconsidered the entirety of the Complaint, not just buzz words, as the governmentadvocates. Accordingly, the lower courts decision is perfectly in line withcontrolling precedents, and should be affirmed.The government also contends that the lower courts interpretation ofFrazier is inconsistent with Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Twombly and Iqbal stand for theproposition that [t]o survive a motion to dismiss, a complaint must containsufficient factual matter, accepted as true, to state a claim to relief that is plausibleon its face. Iqbal, 556 U.S. at 678 (emphasis added).26

That conduct is not part of a prosecutorial function afforded absolute

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The crux of the governments argument is the contention that the lower courtlooked only to the phrase such other relief in the Complaint to find thatAppellees properly pleaded money damages. App. Br. at 62. The governmentcontends further that the Complaint did not include enough information to surpassspeculation as required by Twombly and Iqbal. Id. However, it is clear from therecord that the Complaint articulates, and that the lower court explicitlyconsidered, a number of specific injuries to find that Defendant was adequatelyon notice that Plaintiffs were seeking money damages in addition to the injunctiveand constitutional relief sought. Buhman, 43 F. Supp. 3d 1229, 1232 (D. Utah2014). The lower courts consideration of the entirety of the Complaint isconsistent with Frazier, Twombly, and Iqbal.In sum, the government has provided no reason for why the lower courtsapplication of the logic in Frazier is inapplicable to this case. The Browns gaveample indication of the nature of the harms alleged, and requested any such reliefthat the court may have deemed proper. Appellant was on notice that theAppellees were seeking money damages, and the lower court correctly held thatthe Complaint properly pleaded money damages.For the foregoing reasons, this Court should affirm the lower courts grant ofsummary judgment on Appellees 1983 claim.

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VII. THE AMICUS FILINGS IN FAVOR OF THE STATE ADVANCE

UNSUPPORTED LEGAL AND FACTUAL CLAIMS.The two amicus briefs filed in support of the State only serve to highlight theconspicuous omission in this case: any record of harm that would justify thecriminalization of cohabitation in Utah. Despite the uncontested record below, theamici seek to get the court to take judicial notice of alleged harms that are not onlyunsupported in the record but also entirely unrelated to the Browns.The Sound Choices Coalition (SCC) offers little beyond conclusorystatements about harm regarding bigamous cohabitation. SCC Br. at 1. As athreshold matter, the brief ignores the fact that the statute does not deal withbigamous cohabitation but all cohabitation. Bigamy remains a crime in Utah dueto the careful severance by the lower court of the cohabitation provision topreserve the criminalization of bigamy. In the absence of a record in this case, theSCC seeks to rely on the factual record of a foreign court in another case from2011. There is no support for a court to import such findings from another case, letalone a foreign jurisdiction.27 The SCC simply ignores that the law applies to all

27

Ironically, lead counsel was a legal expert in the Canadian case and hascompared the treatment of harm between United States and Canadian jurisdictions.See generally Loadstone Rock, supra (citing countervailing studies on the harmassociated with plural families). If the Court is going to accept the conclusions ofother courts, including foreign courts, it should permit the Appellees the samelicense to import countervailing findings. Otherwise this case should be decidedon the record agreed upon by the parties before the finder of fact.72

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cohabitation including plural families like the Browns with no evidence of childabuse. It is akin to showing that monogamous families have spousal or child abuseand then asserting monogamy can be outlawed. The SCC states the bigamouscohabitation prong of the statute, . . . may not be perfect, but it does encompasswith some precision the practice of polygamy. Id. at 8. The SCC appears tomean that the broad cohabitation language would cover any and all pluralrelationships including polygamy. As to the rest of the thousands of cohabitatingadults, the SCC simply offers a rhetorical shrug: To the extent that bigamouscohabitation may incidentally encompass adulterous cohabitation, the fact isinsignificant in the constitutional analysis because adulterers are entitled, at most,to rational basis due process. Id. The import of that statement appears to be thatthe State can today criminalize adultery and the rest is left to prosecutorialdiscretion. That view is wholly at odds with existing precedent, including but notlimited to Lawrence.Amicus Eagle Forum suffers from the same anachronistic constitutionalanalysis. The amicus argues that domestic-relations cases fall outside thecategories of cases at law and equity over which both Article III and statutorysubject-matter jurisdiction extend the federal judicial power. Eagle Forum Br. at5. Of course, such a view that a right to marriage was not a case at law or equity,id. at 6, is a curious position in the wake of the Obergefell decision or the decision

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of this Court in Kitchen v. Herbert, 755 F.3d 1193, 1198 (10th Cir.) cert. denied,135 S. Ct. 265 (2014). Putting aside that fundamental threshold error, this case isnot about the recognition of marriage but the criminalization of cohabitation forconsenting adults as a whole. Whatever interest the vast majority of the EagleForums brief on state rights and marriage may hold for the Court, it is strikinglyunconnected to the merits of this case even for an amicus filing.The Eagle Forum also raises jurisdictional issues that are not raised by theState. Indeed, the Eagle Forum not only raises this unchallenged issue but alsoraises a position that even the State did not give credence to below. The EagleForum is arguing that marriage cases are not cases in law or equity. Id. at 12.The Eagle Forum advances an argument never accepted by the federal courts anddismisses the ruling in Obergefell for accepting jurisdiction as obvious rather thanaddressing the Eagle Forums dubious jurisdictional point. Id. at 12 n.5. It isfacially frivolous and unsupported to bar federal rulings related to state marriageon the basis that Article III lists all relevant forms of English jurisdiction exceptecclesiastical courts, which suggests that the Framers intended to reserve that nonfederal form of jurisdiction solely to the states. Id. 13-14.28 Finally, the Eagle

28

Likewise, Eagle Forum argues that this case does not meet its novel equityconditions since, unlike Loving v. Virginia, there was no actual prosecution. Onceagain, the equity arguments (like the alternative argument that these cases mustcome from state appeals) have never been adopted by the federal courts. Puttingthat aside, the lower court found that the government not only investigated the74

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Forum uses much of its brief to argue that the law can be upheld on the basis of arational basis because polygamy is still not deeply rooted in our society. Onceagain, this case is not about the recognition of polygamous marriage. It is notabout polygamy but privacyand privacy rights have changed in the last twohundreds years notwithstanding arguments in the Eagle Forum brief.

VIII. CONCLUSIONIn light of the foregoing, Appellees respectfully submit that the lower courtdecision should be affirmed in its entirety.Respectfully submitted,/s/Jonathan TurleyCounsel for the AppelleesThe George Washington UniversityLaw School2000 H St., N.W.Washington, D.C. 20052(202) 994-7001jturley@law.gwu.edu

Dated: August 25, 2015

Browns but also declared publicly that they were felons. It also found that thegovernment retained the power to prosecute the Browns in the future. See Buhman,947 F. Supp. 2d at 1180, 1216-17.75

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CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that with respect to the foregoing:(1) all required privacy redactions have been made per 10th Cir. R.25.5;(2) if required to file additional hard copies, that the ECF submissionis an exact copy of those documents;(3) the digital submissions have been scanned for viruses with themost recent version of a commercial virus scanning program,Symantec Endpoint Protection, last updated August 25, 2015 andaccording to the program are free of viruses.Date: August 25, 2015

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CERTIFICATE OF SERVICEI hereby certify that on August 25, 2015, I electronically filed the foregoingusing the courts CM/ECF system, which will send notification of such filing to thefollowing:PARKER DOUGLASUtah Federal SolicitorUtah Attorney Generals Office350 North State Street, Ste. 230Salt Lake City, Utah 84114-2320Date: August 25, 2015